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THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986. CRITICALLY ANALYSE.
ADRIJA SENGUPTA, Law Student at National Law University Delhi View: 345

ABSTRACT- Obscenity laws in India was introduced much later than rest of the countries in comparison. Although the Indian Penal Code had provisions, it was only related nudity. New provisions were needed to include what was left out namely how to exactly define obscenity. Furthermore, after a few decades later the law failed to mention provisions for online sharing of graphic and depraved material. The amended law of 2012 bought in provisions for online depiction of obscenity as well as more stringent punishment for both first time offenders and repeat offenders. There are several tests to determine what can be published and what can’t across countries. The standard of determination however keeps changing. Taking into consideration what society considers morally right is definitely the biggest factor in most of the tests. This standard varies from country to country. However in India different tests are taken into consideration and the outcome of a case changes depending upon the facts. Thus no fixed set is taken and judges decide cases on an individual basis. Oftentimes seen as an extension of Article 21 of the Constitution wherein the right to dignity comes under the right to life, this is a serious issue all across India where the depiction of women as sexual beings is particularly problematic given the fact that India has one of highest rates of crimes against women across most countries in South Asia. To prevent a further rise in these rates, precaution is taken in the form of Indecent Representation of Women (Prohibition) Act, 1986 which curbs how a pernicious person would usually imagine the notion of a women to be as.

KEYWORDS – obscenity,Hicklin test, right to dignity, society standards, depravity

INTRODUCTION – In view of rising crime against women and the women’s movement that shortly ensued in the late 1980’s, Shrimati Margaret Alva the then member of the Rajya Sabha introduced a Bill in the Rajya Sabha that sought to curb representation of women that was deemed to be immoral in forms of publishing like advertisements, paintings or any writings. This then became a full-fledged law in October 1987. According to Alva the legislative intent of the new Act was never to curb the freedom of expression but the need is to impose some restrictions on the material that is not bona fide but against the public policy also, providing for exemptions on any visual objects in the interest of art, science or literature. [1]By regulating how women were represented in the mainstream media, especially in print media, the long term aim was to reduce crime against women. The image of women as sexual objects, to be seen as docile beings led to this being a popular notion as to how a woman should behave and if they rejected this notion in any way and seemed to ‘deviate’ from the media depictions of them, this in turn led to increasing violence against women all across the country. Maneka Gandhi v. Union of India [2] as an extension of Article 21 of the Indian Constitution seeks to grant all human beings the right to life having absolute dignity. A further interpretation of the right to live with dignity argument that encompassed around the representation of humans was found in Chandra Raja Kumari v. Police Commissioner[3], Hyderabad. It was held there that right to life included the right to human dignity, so therefore the holding beauty contests is contrary to the dignity and decency of women and therefore in contravention to Article 21 of the Indian Constitution. This action was furthered when in May 1993, the German tennis player Boris Becker and his fiancé Barbara Fultus were featured in a nude photoshoot with the German magazine STERN. Both of them posed in the nude with Becker’s hands strategically covering Fultus. This was reproduced in India in AnandabazarPatrika and Sports World. Aveek Sarkar and experienced advocate in the spirit of public good then proceeded to file a suit against the editor of both AnandabazarPatrika as well as the editor of Sports World, Mansoor Ali Khan of Pataudion the fact that the photograph would “corrupt young minds” and unless such “obscene photographs are censured and banned… the dignity and honor of our womanhood would be in jeopardy”. The Supreme Court then proceeded to answer the question ‘what is obscenity’ in Aveek Sarkar &Anr. v. State of West Bengal &Ors.[4]The Court sought the following test – that whether the material in question had any tendency of exciting lustful thoughts in an average person by contemporary community standards? The average person, by present community standards, shall surely consider the “particular posture and the background in which the nude/semi-nude woman is depicted”; the “context of the material and the “message” it wants to convey.[5] The SC was “not prepared to say” that the photograph or the article, reproduced by Sports World AnandabazarPatrika, was objectionable.The range of tests applied by the courts keep on changing given the current societal context and this leaves a lot up to the judiciary to determine what is seen as obscene and what is not. Despite the Indecent Representation of Women (Prohibition) Act, 1986 as well as the provisions in the Indian Penal Code, the open ended structures leaves a that is yet to be determined with regard to laws around obscenity in India.

DEFINITIONS – The main objective of the Act is to “prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner or for matters connected therewith or incidental thereto”.[6]The Act dealing with only 10 sections seeks to put forth and idea of what obscenity is, and what exactly should be considered punishable, primarily within advertising and media. Inarguably Section 2(c) gives the most important definition on which the entire Act is based on. It defines “indecent  representation  of  women”  which means  the  “depiction  in  any  manner  of  the  figure  of  a woman,  her  form  or  body  or  any  part  thereof  in  such  a  way  as  to  have  the  effect  of  being  indecent,  or derogatory  to,  or  denigrating,  women,  or  is  likely  to  deprave,  corrupt  or  injure  the  public  morality  or morals”. However what constitutes ‘public morality or morals’ is left to the interpretation of the courts which is to be determined by the use of standard tests that is in compliance with the standards of the society during the given time. ‘Indecent representation’ is more focussed on ‘depraving or corrupting content’. Oftentimes this leads to the question of law being confused with whether the standard is to judge from a moral perspective or not.

There are religious exemptions given under the Act – materials with fall under the   Ancient Monument and  Archaeological Sites and  Remains Act,  1958 or and movies which are in compliance with the standards set forth by the Cinematograph Act, 1952.

A well-meaning but often times misused section of the Act is Section 5 which gives any gazetted officer who is authorised by the State Government to enter, search, seize or examine any material which they deem to be offensive or obscene within their local limits. When the question of ‘What is obscene?’ is something that is determined by the judiciary, authorizing a local officer to ensure that in their personal capacity seems to work in contravention with the legislative intent as well as against the spirit of the Constitution. Under Section 9, the Act protects the officers of the State by stating that “no  suit,  prosecution  or  other  legal  proceeding  shall  lie against  the Central  Government  or  any  State Government  or  any  officer  of  the Central  Government  or  any State Government  for  anything  which  is in good faith  done or  intended to be done  under  this Act.” The Act does however provide a check in terms of the fact that no officer can enter a private dwelling house to search or seize without a warrant. Section 5(c) states that “the  power  of  seizure  under  this  sub-section  may  be  exercised  in  respect  of  any document,  article  or  thing  which  contains  any  such  advertisement,  including  the  contents,  if  any,  of  such document,  article  or  thing,  if  the  advertisement  cannot  be  separated  by  reason  of  its  being  embossed  or otherwise  from  such  document,  article  or  thing  without  affecting  the  integrity,  utility  or  saleable  value thereof.”[7] Therefore the Act aims to look at the material in question in its entirety and with definitive background and context. An image or a document taken out of context which is then deemed to be obscene is what the drafters wanted to avoid. Then as was seen in the case of Aveek Sarkar &Anr. v. State of West Bengal &Ors. The aim of Becker and Fultus while posing for the picture was to spread the message of an interracial relationship throughout Germany - to “eradicate the evil of racism and apartheid in the society and to promote love and marriage between a white skinned man and a black skinned woman”.Looking at the context and then applying the act would then determine that AnanadabazarPatrika and Sports World were not in contravention of the law under the 1986 Act.

And lastly, Section 8 makes any offences under this Act to be both cognizable as well as bailable.

Given that the Act was framed in 1986 and since then there has been an influx of other means through which images and materials can be shared. In order to accommodate this, there then arose a need to amend the existing provisions to include the electronic means as well. An amendment later introduced by the Standing Committee on Human Resource Development in 2012, sought to amend the definition of what constitutes an advertisement and increase its scope to include any sign, circle, sticker, poster, wrapper or other documents as well as any visible representation rendered by any laser light, sound, smoke, gas, fibre, electronic optic or other media. The Commission also pushed for the term ‘degrading’ to be added alongside ‘obscene’ to further the scope and by extension the interpretation of the Courts with regards to preventing any depraved depictions of women online or via print media. The Indecent Representation of Women (Prohibition) Bill 2012 emphasized on the inclusion of women in the audiovisual and electronic communications media and to address the issue of female objectification. In addition to guaranteeing that all components of the regulatory framework enacted in law are covered by the media, the law also establishes a strict compliance mechanism to act in a dissuasive manner, prohibiting any indecent behaviour that contradicts the law.This Bill also sought to increase maximum prison sentence for first offence as well as minimum prison sentence for second offence. It also authorizes only police officers above the rank of an Inspector to make investigation of offences under the Act.

JUDICIAL PRONOUNCEMENTS IN INDIA - In Ajay Goswami v. Union of India[8], the petitioner prayed to the Court to provide a list of guidelines for newspaper agencies to follow so that children and other sensitive members of the society are not subjected to any ‘obscene’ or ‘depraved’ material whatsoever. The petitioner further contended that the right to protect children should be upheld at the cost of right to freedom of the press. The Court held that Section 292 of the Indian Penal Code as well as the Press Council Act of 1978 were already in place and well-functioning. Thus there was no further need of guidelines which would effectively provide for a blanket ban on newspaper companies. Further that sufficient evidence wasn’t provided by the petitioner and the Court cannot just curtail the freedom of speech and expression out rightly.

Adding onto this, we can look at the Doctrine of Clear and Present Danger than the Supreme Court stated while giving its verdict in S.Ragarajan v. P. Jagjivan Ram: the commitment to freedom demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably like the equivalent of a ‘spark in a power keg’.” This further substantiated the view that the Court held in Ajay Goswami v. Union of India.

In Samresh Bose v. AmalMitra, the Court stated that, In appropriate cases, the court, for eliminating any subjective element or personal preference which may remain hidden in the subconscious mind and may unconsciously affect a proper objective assessment, may draw upon the evidence on record and also consider the views expressed by reputed or recognized authors of literature on such questions as if there by any of his own consideration and satisfaction to enable the court to discharge the duty of making a proper assessment.”[9]Therefore the courts themselves draw upon the expertise of other people to reach a determinate conclusion as to what constitutes as ‘obscene’ and what might ‘negatively corrupt’ the human mind.

TEST OF OBSCENITY – In RanjitD.Udeshi v. State of Maharashtra, a bookseller was booked for selling an unabridged version of D.H Lawrence’s book Lady Chatterley’s Lover. This trial, later dubbed as the ‘trial of obscenity’ laid down the basic test to what is considered obscene to the regular human mind: "where indecency and art are blended, art must be so preponderate as to toss the obscenity into a shadow or the vulgarity so inconsequential and unimportant that it can have no impact and might be ignored. It is vital that a parity should be kept up between "the right to speak freely of discourse and expression" and "public decency and morality"; however when the latter is significantly violated the previous must give way.

An initial test was given by an US Federal Court in Roth v. United States[10]. The test held a five-part structure – (1) it has to be evaluated by an ordinary, reasonable person, (2) community guidelines for determining what is obscene has to be taken into account, (3) material which is predominantly questionable – both theme and essence were to be targeted, (4) for something to be judged as obscene it should be seen in its entirety and not just be seen in parts, and (5) an obscene work was such that a person with prurient interests would be excited by it.

This five-part test was later replaced by the Miller test which applied the criteria of “(1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.”[11]

The Supreme Court following this instance held that the scenes depicting nudity must not be seen in isolation but in its entire context in the Bobby International case. The message becomes of the utmost importance. In this case it was also mentioned that ‘nakedness does not always arouse baser instinct. However the acceptable rate of obscenity is not a settled legal topic in India. However, if only the Section 292 of the Indian Penal Code is to be taken into consideration then if a material tends to attract morally corrupt people then it becomes punishable.

A legal test for obscenity came from the English case Regina v Hicklin. This focussed on the interpretation of the word obscene. The question of the law then boiled down to “whether the tendency of the matter is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall”.  [12]

The Hicklin test was overruled by the United States v. One Book Called Ulysses in 1933. Judge John M. Woosley focused on the ‘literary value of the entire work and its effects on a person with average sex instincts’. Obscene during this judgement was taken in the sense as to how a material tended to rouse sexual impulses and lead to morally corrupt and depraved thoughts. It was held that James Joyce’s Ulysses was not considered obscene as per this test.

In India, community standards are usually applied by the Court when deciding on obscenity, alongside whichever test suits the situation at hand. Since there is no fixed guideline there isn’t a fixed formulae as to what is considered obscene and what isn’t. This puts an added pressure on the judiciary to consider the obscenity law on a case to case basis.

OVERLAPPING PROVISIONS –The Indian Penal Code deals with obscenity in Sections 292, 293 and 294. However, despite these provisions existing before the 1986 Act, the rate of immoral and obscene depiction of women continued to rise. Thus it was imperative that a new and a more targeted legislation needed to be bought about and strictly enforced to curb this alarming rise. Most advertisements depicted women as sexual objects of desire to attract more audience – the target group mostly being men, since women were used in advertisements for men’s products. The Indian Penal Code does not specifically mention obscenity in its provisions. It only seeks to punish nudity or content deemed sexually offensive. What the Indecent Representation of Women (Prohibition) Act of 1986, seeks to do then is to bring in the concept of obscenity. In some cases even if there is no intent while publication, the publication itself has long reaching effects that goes out of its way to denigrate women.

CONCLUSION - In conclusion the author, would like to draw attention to the fact that the immoral and obscene depiction of women snowballs and leads to more societal problems at a much larger scale. Taking a case study into consideration here, when in 2012 British journalist Gethin Chamberlain came out with a report on the Human Safari video. In the video in question some Indian Government officials were seen to enter a quid pro quo with Jarwa women from the Andaman and Nicobar Islands, where they gave the women food and in return the semi-naked women danced for them. What followed after that was the video being shared multiple times, followed by racist and bigoted comments about the women and the Jarwasas a whole community. The sexual objectification of the women and the unethical cultural commodification unearthed by Chamberlain in his report sent shockwaves across the country. This was an isolated case where the women who were victimized didn’t even know what had happened to them. But it certainly led to a conversation around the topic which bought about the lacunae around the Indecent Representation of Women (Prohibition), 1986 and its online provisions. There are several tests that decide whether any material circulated – online or vide print is deemed obscene in the eyes of reasonable people as well as by community standards. India takes a flexible stand regarding these tests and as can be seen from the various judicial pronouncements and decides materials individually and even refused to set a fixed set of guidelines for media houses as was seen in Ajay Goswami v. Union of India. It is commendable that the Courts are flexible as they maintain the delicate balance between what offends the moral upstanding society and the rights of media houses to speech and expression. But by not setting a particular standard the question “What is obscene?” becomes a question of the law rather than one which can be easily settled by following a set of guidelines as was set down in the Roth test or the Hicklin test. Applying a formulae and solving the question then becomes a relatively easier process than waiting for a long a judicious pronouncement on what can be published and what cannot. So then, what does set apart the decision making process of the Indian judiciary with respect to the provisions of the Act form the judicial systems followed by the other countries? For one in following numerous tests the process becomes inherently more complicated to follow and have a precedent. As a resultit creates additional pressure on the judiciary and leads to backlogs and years to dismiss a case. For example when we look at the reproduction of the photoshoot of the STERN magazine, the issue took AnandabazarPatrika and Sports World almost two decades to resolve, during which time Becker and Fultus had gotten married and even subsequently divorced. It is this delay that makes one question the motives of the judiciary as to whether the process is really reliable or not. The intent behind the Act, when bought about in 1987 was a noble one, the dual aspects of making the entire process of adjudication hinge on the question of law as well as giving the State officials unlimited powers as well as protection of the law in case things go awry make the Act seem like there still lies a scope for improvement, by the way of bringing about more subsequent amendments.



[1]https://rsdebate.nic.in/bitstream/123456789/321151/1/PD_140_12111986_7_p194_p280_20.pdf

[2]1978 SCR (2) 621

[3][1998] (1) ALD Cri 298

[4] (2014) 4 SCC 257

[5] ibid

[6] Preamble to the Indecent representation of Women (Prohibition) Act, 1986

[7]Indecent Representation of Women (Prohibition) Act 1986, s 5(c)

[8]Writ Petition (civil)  384 of 2005

[9][1985] 4 SCC 289

[10] [1957] 354 U.S. 476

[11][1972] 413 U.S. 15

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